Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

Marty Lederman

I hope that that headline is a gross exaggeration, but based on a few quick seconds perusing the "compromise" on Common Article 3, I'm afraid it's not. [The Administration appears to agree. Stephen Hadley was crowing to reporters within minutes that the bill would authorize the CIA "program" to "go forward." And a "senior administration official" -- apparently Dan Bartlett -- told the Washington Post "that Bush essentially got what he asked for in a different formulation that allows both sides to maintain their concerns were addressed. 'We kind of take the scenic route, but we get there,' the official said."] [NOTE: I will be updating this post as we learn more, and if I have any time to parse the language more closely. I would dearly love if my initial impression -- and Hadley's -- is proven to be dead wrong. So I sincerely invite folks from the Senate staffs and elsewhere to write in with comments and corrections. The fine and careful folks over at Human Rights First are painting it as a significant victory for McCain, going so far as to argue that "the language in today’s agreement makes clear that ‘alternative interrogation procedures’ such as stress positions, induced hypothermia and waterboarding are not only prohibited by the treaty, they are war crimes." I would really like this to be true. But, as of now, at least, I don't quite see it. And, what's far more important, obviously the Administration doesn't see it that way, either. Am I missing something obvious? Which provisions of the new WCA, exactly, would prohibit stress positions and induced hypothermia -- not to mention sleep deprivation and threats?]

Language below. It's not subtle at all [UPDATE: The way in which the bill excludes the CIA techniques from "cruel treatment" is rather subtle, and important: I discuss it here]. It only takes 30 seconds or so to see that the Senators have capitulated entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. Some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.

[UPDATE: As I explain here, on closer inspection the more serious problem is not so much the delegation of some unreviewable interpretive authority to the President (troubling though that is), but instead that the legislation itself would define "cruel treatment" far too narrowly, so as apparently to exclude the CIA's "alternative" techniques, no matter how cruel they are in fact. I hear word that Senator McCain thinks the bill's definition of "grave breaches" of Common Article 3 covers the "alternative" CIA techniques. I hope he can make that interpretation stick somehow, but on my quick [first two] readings of the language, it still seems to me as if it's carefully crafted to exclude the CIA techniques. See, most importantly, the limiting language defining "serious physical pain or suffering," which is carefully drafted to exclude the CIA techniques such as Cold Cell and Long Time Standing.]

And then, for good measure -- and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation -- section 7 would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories." [UPDATE: I've heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that's so, it's not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]

If I'm right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.

[UPDATE: In the post above, I tentatively conclude that what's most alarming and radical about the "compromise" is the statutory definition of "cruel treatment," and the foreclosure of both judicial review and any judicial consideration of any question dealing with Geneva interpretation.]

(a) IN GENERAL. No person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a partyas a source of rights, in any court of the United States or its States or territories.

(b) GENEVA CONVENTIONS DEFINED. In this section, the term "Geneva Conventions" means

(1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217);

(2) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);

(3) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and

(4) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.

(a)(1) IN GENERAL. The acts enumerated in subsection 2441(d) of title 18, United States Code, as amended by subsection (b) of this section, and in subsection (c) of this section, constitute violations of Common Article 3 of the Geneva Conventions prohibited by United States law.

(2) PROHIBITION ON GRAVE BREACHES. The provisions in section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in Common Article 3 in the context of an armed conflict not of an international character. No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d).

(3)INTERPRETATION BY THE PRESIDENT. (A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

(B) The President shall issue such interpretations by Executive Order published in the Federal Register, and such orders shall be authoritative (as to non-grave breach provisions) as a matter of United States law, in the same manner as other administrative regulations.

(C) Nothing in this section shall affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.

(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE. (1) Section 2441 of title 18, United States Code, is amended

(A) in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):

(3) which constitutes a grave breach of Common Article 3 as defined in subsection (d) when committed in the context of and in association with an armed conflict not of an international character; or;

(B) by adding at the end the following new subsection:

(d) COMMON ARTICLE 3 VIOLATIONS.

(1) PROHIBITED CONDUCT. In subsection (c)(3), the term ˜grave breach of Common Article 3" means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions does at Geneva August 12, 1949), as follows:

(A) TORTURE. The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) CRUEL OR INHUMAN TREATMENT. The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including seriousphysical abuse, upon another within his custody or control.

(C) PERFORMING BIOLOGICAL EXPERIMENTS. The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.

(D) MURDER. The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

(E) MUTILATION OR MAIMING. The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY. The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

(G) RAPE. The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.

(H) SEXUAL ASSAULT OR ABUSE. The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.

(I) TAKING HOSTAGES. The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

(2) DEFINITIONS. In the case of an offense under subsection (a) by reason of subsection (c)(3)

(A) the term ˜severe mental pain or suffering" shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title.

(B) the term ˜serious bodily injury" shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title.

(C) the term ˜sexual contact" shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title.

(D) the term ˜serious physical pain or suffering means bodily injury that involves

(1) a substantial risk of death;

(2) extreme physical pain;

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

(E) the term ˜serious mental pain or suffering" shall have the same meaning as ˜severe mental pain or suffering" as such term is defined in 18 U.S.C. § 2340(2), except that the term "serious" shall replace the term "severe" where it appears in such definition, and except that, as to conduct occurring following the date of enactment of the Military Commission Act of 2006, the term "serious and non-transitory mental harm (which need not be prolonged)" shall replace the term "prolonged mental harm" in such definition.

(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK. The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to

(A) collateral damage; or

(B) death, damage, or injury incident to a lawful attack.

(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE. Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.

(2) RETROACTIVE APPLICABILITY. The amendments made by this section, except as specified in paragraph 2441(d)(2)(E) of title 10, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002 of Public Law 107-273).

(1) IN GENERAL. No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED . The term "cruel, inhuman, or degrading treatment or punishment" in this subsection shall mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

(3) The President shall take action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.

It'll take a while to digest all this, but one quick point: The courts are not "preclude[d] ...altogether from ever interpreting the Geneva Conventions". The language does not rule out criminal cases. I guess Bush is confident that I won't be the next Attorney General.

What about the new "ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT ORPUNISHMENT" section? That mentions the 5th, 8th and 14th Amendment restrictions taken from the McCain bill - although it further clarifies its meaning based on A 12/10/84 statement to the UN. And, the interpretation of this is still open to judicial review.

I am confused. It seems to me that the administration caved in by removing its own language to the effect that the 2005 McCain amendment "shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of common Article 3 of the Geneva Conventions?"

Instead, the new compromise references only our obligations to punish violations of Geneva, which in turn reference the new language of Warner-McCain-Graham. It says this language shall "satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in Common Article 3."

Isn't that all Warner, McCain and Graham were asking for? They were not even proposing to punish non-grave breaches of Geneva, were they? The additional language authorizing the president to define additional punishable offenses other than the enumerated "grave breaches" seems essentially meaningless and face-saving for the President.

Since the Warner-McCain-Graham bill already would have protected U.S. officers from criminal or civil liability for torture-lite practices, how is this new compromise an enhanced endorsement of such practices?

Suppose for a moment that the bill were to become law as described above. That so, what countries, if any, have a right to request the institution of a GC3 article 132 enquiry to examine the possibility of US breach of it's treaty obligations? Are there any countries that would qualify as "a Party to the conflict" as required? Perhaps countries of origin of the "high value" detainnees, eg. Kuwait, Malaysia, Saudi Arabia, etc?

If not, it seems that article 132 may be an empty letter as it relates to this matter.

The definition of prohibited cruel acts short of torture appears to be defined more robustly, or at least more directly, in the new compromise language than in the Warner-McCain-Graham bill.

Old bill: "CRUEL, UNUSUAL, OR INHUMANE TREATMENT OR PUNISHMENT -- The act of a person who subjects another person in the custody or under the physical control of the United States Government, regardless of nationality or physical location, to cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the Constitution of the United States."

New compromise: "CRUEL OR INHUMAN TREATMENT -- ”The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control."

That definition, in turn is modeled upon the definition of "torture" under existing law, except that the threhhold degree is lower:

"the term 'serious mental pain or suffering' shall have the same meaning as 'severe mental pain or suffering' as such term is defined in 18 U.S.C. § 2340(2), except that the term 'serious' shall replace the term 'severe' where it appears in such definition, and except that, as to conduct occurring following the date of enactment of the Military Commission Act of 2006, the term 'serious and non-transitory mental harm (which need not be prolonged)' shall replace the term 'prolonged mental harm' in such definition."

So prior acts are treated more leniently.

Going forward, the new language does seem to me to be less susceptible to creative and forgiving interpretation than the Warner-McCain-Graham bill. And it would also seem to be less susceptible to such circumvention that the more general standard of the 2005 McCain amendment, which Marty believes OLC has rationalized away.

Overall, does this language not seem actually to toughen the state of the law with respect to torture-lite? I should think that waterboarding is clearly outlawed going forward. Induced hypothermia and stress positions also seem out of bounds under this language.

The new "cruel and inhuman" language you quote is virtually the same as the language in the original Bush bill - so the argument that the new language is less susceptible to forgiving interpretation doesn't make sense.

On the other hand, the McCain "cruel and inhuman" language appears at the very end of the compromise bill.

I'm still not clear, given the President won on judicial stripping of Geneva interpretations, what parts of this bill are subject to judicial review as a matter of interpreting US law.

This seems to prevent any civil action based upon the Genevia conventions but does it not forclose claims based upon the 1984 UN "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment".

I notice that the US exceptions to that only somewhat limit the obligation of Article 14 to provide a private right of action for damages for acts of torture (at lest when committed in territory under the jurisdiction of the US).

Respectfully, please look more closely at the definitions. The difference is that the compromise lowers the threshold definition of "serious mental pain or suffering." The original Bush bill conveniently defined this identically to that required to constitute full-fledged "torture."

As we begin to get a better idea of exactly what this bill allows, it's important to prepare a last push to prevent it from being signed. If enough individuals speak out -- especially those with the credentials of Mr. Lederman, Mr. Tamanaha and Mr. Balkin -- it is possible to prevent such a regressive bill from being signed into law. A good place to start would be to call the senators with the public clout to push back this administration. It's not likely to work two months before the election (and with a mass of scared citizens), but we can't give up.

I've got to hand it to the Democrats. The strategy of allowing the Republicans to "thrash out" their differences on the treatment and prosecution of detainees has played out exactly as planned...for the Republicans. Don't let anyone convince you that you can go to the well too often...that is if you are a Republican and your opponent is a fully inept Democratic Party.

Amidst a trend of favorable polling data and a firestorm of speeches by the President to refocus the voting public on their fear of terrorism, the Democrats stood in the background for the past two weeks and watched as the GOP did the difficult work of creating legislation that preserves our commitment to civil liberties while at the same time providing our determined President with the essential tools needed to pursue those who seek to kill us all.

OK, perhaps I'm being too harsh. There is a possibility that in the past two weeks the Democrats were able to devise their sixth iteration of a campaign slogan and strategy to roll out with less than 50 days to the election. Perhaps they could call it "Fifty States, Fifty Days...But Never to Fifty Percent"? It's catchy, it's succinct, and it may well be accurate come November 8th.

It is of course open to interpretation as to how much lower the threshold is for "serious" versus "severe" and "serious and non-transitory" versus "prolonged" (the former might even be a higher threshold in some respects by adding "serious"). However, it is clear to me the McCain language that remained at the bottom of the bill is an even lower threshold (yet still vague).

Of possibly greater importance is my still unanswered question as to what portions of the bill are subject to judicial review - for without such review doesn't the executive have the power to interpret the words any way he sees fit.

(3) a burn or physical disfigurement of a seriousnature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the functionof a bodily member, organ, or mental faculty.

Help me on this one, i'm not a legal expert, but does section 3 and 4 allow physical beatings that cuase bruising and cuts but doesn't impare a member or organ. Isn't serious or extreme beating still torture

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

So what does "serious" physical pain or suffering mean? Apparently only "extreme physical pain," plus certain horrible forms of injury and disfigurement, but it does NOT include the infliction of cuts, abrasions, or bruises.

NOTE ALSO that the infliction of physical pain or suffering, however severe, does not count as "serious" pain or suffering, UNLESS IT OCCURS THROUGH "BODILY INJURY," whatever that means.

I can't understand the paragraph about "serious" mental pain or suffering. But if the legal parsers turn for instruction to the language about "serious" physical pain or suffering, they will be inspired to define "serious" mental pain or suffering very narrowly indeed. We get a return here to extreme pain, organ failure, and death. The Bybee torture memo lives! In the years to come, we can look forward to learned disquisitions on the meaning of "serious" pain, "extreme" pain, organ failure, bodily injury, burns and disfigurements of a "serious nature."

So the fine print is terrible, and that's just the beginning.

The day (or hour) after this bill is passed, Bush will publicly announce his interpretation of Common Article Three. It will be the same flexible standard (linked to the "shocks the conscience" formula) that appeared in Bush's original bill. Only now, Congress isn't "stained" by putting that language directly in the legislation.

In one way this "compromise" is WORSE than Bush's original bill. Instead of redefining Common Article Three itself, the new legislative proposal gives the President carte blanche to do so himself, without any possibility of judicial review. So the governing interpretation of Common Article Three could turn out to be MUCH WORSE than what appeared in Bush's original bill. Not only that, but the bill gives the President a free hand in interpreting all of the Geneva Conventions. Get ready for some very creative interpretation of other Geneva provisions. (Expect that the Supreme Court's extension of Common Article III to suspected terrorists will be whittled away to nothing.)

All this of course is combined with the habeas-stripping provisions that deny torture victims any judicial remedy whatsoever, and the rewriting of the War Crimes Act so that torture (by which I mean torture rather than the administration's fancy definition of "torture") is no longer a federal crime.

And yes the bill does effectively block reference to Geneva even in criminal trials, since the ability to prosecute war crimes is extremely narrowly circumscribed in the ways we have seen.

And I suspect this only scratches the surface of the damage contained in this bill.

The included reference at the bottom to the McCain language, as I read it, basically just reiterates the existing McCain-amendment prohibition outside the context of the War Crimes Act's sanctions.

As I understand the state of judicial review, it really hasn't changed:

Habeus review by detainees is blocked. That was not at issue in these negotiations, because the three senators did not disagree with the administration position. Recall that Graham has led the court-stripping faction all along.

Review and interpretation of the torture/cruel-treatment definitions in the War Crimes Act would be up to prosecutors, defense attorneys and judges in any case brought under that act.

The unknown is what advice OLC and CIA lawyers would give to officers in the meantime, and they surely will refuse to disclose that.

My problem with this whole thing isn't about what can be done, but to who and for what purpose.

The Bush Admin has given the obvious example of a known terrorist with information which would prevent another 9/11 attack.

Does the proposed Bill limit itself to non-US persons, to known terrorists, to finding out about future attacks?

Last Friday, President Bush stated that we needed these methods to prevent another attack. The only thing I can understand from this is that we can't defend ourselves from terrorists without inside knowledge (certainly Bush Admin proves this point so far), and that this reasoning can extend forever: you must capture people to subject them to the alternative procedures. Otherwise we are doomed to be attacked by some unknown group.

Okaying this for one person sets a legal precident doesn't it? If no one speaks of the potential reach of this legislation and only thinks of those 14 supposed terrorists, we will be stuck with this as the new standard.

Another argument for the torture legislation is that agents want 'legal clarity'. I figured when Hamdan was announced that anyone engaged in torture would stop, and that they would be pretty happy about stopping. In other words, torture would stop because the front line agents could legally resist the orders of their superiors.

Bush seems to imply that these agents want to return to these practices. Does anyone suspect that these new laws are really aimed at forcing agents to engage in torture, or are they really looking forward to the freedom?

Is there any journalist or writer who can go even one step beyond the statements of the Bush/Republican line of reasoning to ask a detailed question?

If 1) you agree that the supposed lower threshold in the compromise isn't enough to prevent Cold Rooms, and 2) the added reference to the McCain language at the bottom of the bill does nothing more than repeat what is already in the Detainee Treatment Act, then what did Bush give in the compromise?

It appears Bush is the big winner because the courts are prevented from interpreting Common Article 3 more stringently than what is specified in this bill (the original McCain bill only prevented judicial review for damage claims - not whether the USA is living up to Common Article 3).

Can Cold Rooms administered outside of Gitmo be judicially challenged under Section 1003 of the Detainee Treatment Act? Am I correct that the companion language in this bill is protected from all judicial cases (the habeas restriction isn't limited to Gitmo and the companion language was not ammended to the War Crimes Act - although it was in McCain's bill)?

I've been parsing this thing since last night and just updated thanks to your language. It's horrible and it completely rolls over for presidential fiat while stripping the courts of power. This was no compromise.

The exclusion of acts that otherwise would violate the "torture" or "cruel or inhuman treatment" sections because they are "incidental to lawful sanctions" is a huge loophole in the hands of a competent lawyer. Let's say that the CIA aggressively uses the authority the Act gives the President to "interpret the meaning and application of the Geneva Conventions." Let's say it establishes a rule that refusal to answer a question when it is asked permits the inquisitor "to impose such sanctions as he, in his sole discretion, deems necessary to assure compliance?"

And being as the Act also seems to deprive courts of all habeas jurisdiction flowing from Geneva violations, it would seem that no one could challenge this interpretation except by appealing to the President.

3) INTERPRETATION BY THE PRESIDENT.- As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions . . . .

Unbelievable. The Constitution gives King George "the authority FOR THE UNITED STATES to interpret the Geneva Conventions." In other words, Congress (assuming that it approves this monstrosity) agrees that the Constitution gives Bush the power to override the Supreme Court's interpretation of the Geneva Conventions.

Bush and the Congressional Republicans have just thrown down the gauntlet. This is a flat-out attempt to legislatively overrule Marbury v. Madison. Don't believe me? Listen to Tony Snow at a press conference today:

[Eric Brewer]: But isn’t it the Supreme Court that’s supposed to decide whether laws are unconstitutional or not?

Tony: No, as a matter of fact the president has an obligation to preserve, protect, and defend the Constitution of the United States. That is an obligation that presidents have enacted through signing statements going back to Jefferson. So, while the Supreme Court can be an arbiter of the Constitution, the fact is the President is the one, the only person who, by the Constitution, is given the responsibility to preserve, protect, and defend that document, so it is perfectly consistent with presidential authority under the Constitution itself.

Since Tony Snow, as far as I know, is not a constitutional scholar, someone (Addington?) must have written that line for him -- a reference to the Constitution, Article II, section 1, last clause.

So now the oath that Bush took, and has violated flagrantly and frequently, becomes the source of a power to interpret the Constitution that overrides "the judicial Power" that Art.III s.1 grants to the courts?